STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS FILED 

November 10, 2014 

RORY L. PERRY II, CLERK 

JANET L. RICHARDSON, SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Claimant Below, Petitioner 

vs.) No. 13-1053 (BOR Appeal No. 2048318) 

(Claim No. 2012008470) 

SPEEDWAY, LLC, 

Employer Below, Respondent 

MEMORANDUM DECISION 

Petitioner Janet L. Richardson, by M. Jane Glauser, her attorney, appeals the decision of 

the West Virginia Workers’ Compensation Board of Review. Speedway, LLC, by Howard G. 

Salisbury Jr., its attorney, filed a timely response. 

This appeal arises from the Board of Review’s Final Order dated September 23, 2013, in 

which the Board affirmed a March 27, 2013, Order of the Workers’ Compensation Office of 

Judges. In its Order, the Office of Judges affirmed the claims administrator’s August 22, 2012, 

decision denying the request to add the diagnoses of foraminal and spinal stenosis, subluxation 

of the vertebra, multilevel disc herniations, and mild degenerative changes as compensable 

conditions of the claim. The Court has carefully reviewed the records, written arguments, and 

appendices contained in the briefs, and the case is mature for consideration. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Ms. Richardson worked as a sales clerk for Speedway, LLC. On August 29, 2011, she 

was assaulted while at work. During the assault, her attacker shoved her repeatedly against a 

metal sink, which caused a significant bruise on her back. X-rays were taken of Ms. 

Richardson’s back at Wheeling Hospital which showed multilevel disc narrowing. The x-rays 

Gibbons, FNP-BC, who found that she had full range of motion and released her to return to 

regular work duty without restrictions. Ms. Richardson returned to work on September 3, 2011, 

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but she continued to receive evaluations from Ms. Gibbons. The claims administrator held Ms. 

Richardson’s claim compensable for a back contusion and determined that she was only eligible 

for necessary medical treatment and expenses. An MRI was then taken of Ms. Richardson’s 

lumbar spine which revealed multilevel degenerative disc disease and herniations. In light of 

these findings, Ms. Gibbons placed Ms. Richardson on light work duty and restricted her from 

lifting more than ten pounds or standing for more than two hours in an eight hour day. 

Speedway, LLC, was not able to accommodate these restrictions, and Ms. Richardson stopped 

working. Ms. Richardson was then treated by Matt El-Kadi, M.D., who diagnosed her with 

foraminal stenosis and several disc protrusions throughout the lumbar spine. Sushil M. Sethi, 

M.D., then performed an independent medical evaluation of Ms. Richardson. He found that she 

had reached her maximum degree of medical improvement and required no further medical 

treatment for her compensable contusion. Dr. Sethi determined that the MRI revealed age-related 

degenerative disc disease at multiple levels of her spine, and he attributed her ongoing symptoms 

to this condition. Ross Tennant, FNP, then requested that foraminal and spinal stenosis, 

subluxation of the vertebra, multiple disc herniations, and mild degenerative changes be added as 

compensable conditions of the claim. On August 22, 2012, the claims administrator denied Mr. 

Tennant’s request. On March 27, 2013, the Office of Judges affirmed the claims administrator’s 

decision. The Board of Review affirmed the Order of the Office of Judges on September 23, 

2013, leading Ms. Richardson to appeal. 

The Office of Judges concluded that the requested diagnoses were pre-existing, naturally 

occurring, and non-occupational conditions. The Office of Judges concluded that the claims 

administrator properly denied adding the diagnoses as compensable conditions of the claim. It 

determined that there was no evidence in the record relating the requested additional diagnoses to 

the compensable injury. It also found that Mr. Tennant did not provide any evidence supporting 

the updated diagnoses form he submitted to the claims administrator. The Office of Judges relied 

on the opinion of Dr. Sethi and his interpretation of the MRI evidence in the record. The Board 

of Review adopted the findings of the Office of Judges and affirmed its Order. 

We agree with the conclusions of the Board of Review and the findings of the Office of 

Judges. Ms. Richardson has not demonstrated that the diagnoses of foraminal and spinal stenosis, 

subluxation of the vertebra, multilevel disc herniations, and mild degenerative changes are 

causally connected to her compensable injury. The evidence in the record, including the x-ray 

taken immediately after the injury, indicates that the requested additional conditions pre-existed 

the compensable injury. Ms. Richardson has also not presented any evidence that the 

compensable injury aggravated her pre-existing spinal conditions. The record shows that Ms. 

Richardson’s physical injuries were limited to a contusion of the lower back. The treatment notes 

of Ms. Gibbons and the evaluation of Dr. Sethi demonstrate that this condition has completely 

resolved. 

For the foregoing reasons, we find that the decision of the Board of Review is not in clear 

violation of any constitutional or statutory provision, nor is it clearly the result of erroneous 

conclusions of law, nor is it based upon a material misstatement or mischaracterization of the 

evidentiary record. Therefore, the decision of the Board of Review is affirmed. 

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Affirmed. 

ISSUED: November 10, 2014 

CONCURRED IN BY: 

Chief Justice Robin J. Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Allen H. Loughry II 

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